No job opening? Employee can’t claim bias

The 4th Circuit Court of Appeals, which covers North Carolina employers, has issued a no-nonsense opinion full of common sense: Employees can’t bring an employment discrimination lawsuit because they didn’t get a job that doesn’t exist or for which applicants aren’t being sought.

Recent case: Arthur McNeal, who is black, worked in a procurement office. When he became deeply involved in a particular contract process, McNeal claims he spent up to 30 hours per week just on that project. He believed he was entitled to more money for the extra work and wanted a promotion to a higher-paying position. That’s when he “applied” for a promotion from Program Manager I to Program Manager II.

There was just one problem—there were no open Program Manager II positions at that time.

HR told him so, but he still filed a race discrimination lawsuit, claiming he had been denied a promotion because of his race and sex. McNeal argued that either a position existed or that one could have been created so that he would be compensated for his additional work.

The 4th Circuit Court of Appeals threw out the claim. It said the only relevant question was whether there was an open Program Manager II position for which the employer was actually seeking an applicant, not whether the job could have been created if the employer wished to do so.

Since no such job was open and no applicant was being sought, McNeal therefore couldn’t have been rejected because of his race or sex. Simply, there was nothing to be rejected from. (McNeal v. Montgomery County, et al., No. 07-1323, 4th Cir., 2009)

Final note: Mark all unfilled positions by their status—for example, “search frozen” or “seeking applicants.”